RICHARDS & PARSONS - [2013] FamCAFC 74

FAMILY COURT OF AUSTRALIA

RICHARDS & PARSONS

[2013] FamCAFC 74

FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against the orders of a Federal Magistrate preventing her from establishing the child’s residence in Brisbane – Where the mother had already moved from Canberra to Brisbane – Where the Court held that the Federal Magistrate did not give the appropriate weight to the fact that the mother and child had lived in Brisbane for some time before the father commenced proceedings; that the extreme violence which had occurred would likely effect future dealings between the mother and the father; the uncertainty of housing arrangements for the mother in Canberra; the father’s lack of commitment to his child support obligations – Appeal allowed – Matter remitted for re-hearing – Certificates for costs granted.

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth)

CDJ v VAJ (1998) 197 CLR 172

Gronow v Gronow (1979) 144 CLR 513

APPELLANT:

Ms Richards

RESPONDENT:

Mr Parsons

FILE NUMBER:

CAC

1161

2011

APPEAL NUMBER:

103

2012

DATE DELIVERED:	7 May 2013
PLACE DELIVERED:	Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn, Coleman and Strickland JJ

HEARING DATE:

22 October 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

10 July 2012

LOWER COURT MNC:

[2012] FMCAfam 671

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Petrie

SOLICITOR FOR THE APPELLANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hassall

SOLICITOR FOR THE RESPONDENT:

Evans Family Lawyers

Orders

The appeal be allowed.
Subject to Order 4 of these orders, Orders 3, 4 and 5 of the orders made by Federal Magistrate Brewster (as he then was) on 6 August 2012 be set aside.
All applications for parenting orders (other than in relation to equal shared parental responsibility) be remitted for re-determination by a Judge of the Federal Circuit Court (other than Judge Brewster).
Pending further order (including interim order) of the Federal Circuit Court:
(a) the child live with the mother;
(b)the father spend time with the child each alternate weekend from 10:00am Saturday until 4:00pm Sunday;
(c)all handovers are to be at a place agreed between the parties.
The applications by both parties to extend time to file applications to adduce further evidence be dismissed.
There be no order for costs in relation to the appeal.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.
The Court grants to each party a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a cost certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the parties in respect of such part as the Attorney-General considers appropriate of any costs incurred by the parties in relation to the new trial.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Parsons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 103 of 2012
File Number: CAC 1161 of 2011

Ms Richards

Appellant

And

Mr Parsons

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Richards (“the mother”) against orders made by Brewster FM (as he then was) on 6 August 2012 in proceedings between the mother and Mr Parsons (“the father”) which related to the future living arrangements for the only child of the parties’ relationship, who is a daughter born in February 2009.
Although not immediately clear on the face of the orders appealed but, as will emerge later in these reasons, the effect of the orders was to prevent the mother from establishing the child’s residence in Brisbane.

Background chronology

The father (who was born in 1980) and the mother (who was born in 1982) lived together in the Canberra area between February and September 2008.
At the end of June 2008 the father committed an assault on the mother for which he was convicted and placed on a good behaviour bond. In September 2008 he committed a further assault on the mother, following which the parties separated, and for which he was convicted and sentenced to three months imprisonment. (These serious assaults by the father are described in detail in [36] to [39] of his Honour’s reasons for judgment in relation to the orders now appealed. Those reasons were delivered on 10 July 2012.)
The child who is the subject of these proceedings was then born towards the end of the following February (2009).
His Honour found (at [4]) that the father apparently “saw a good deal” of the child initially, but that from May 2009 to February 2011 his time with the child “was sporadic and consisted essentially of time in the presence of the mother at shopping centres and in restaurants and occasionally at his parents’ home.”
In March 2010 the mother had commenced a relationship with Mr O, and in February 2011 she moved with Mr O and with the child to Brisbane for the purposes of Mr O’s employment. However, in April 2011 the mother and Mr O separated, but the mother and the child remained in Brisbane, although they would occasionally visit Canberra when the father would see the child.
Litigation between the parties commenced on 12 August 2011 when the father filed an application seeking final orders that the child live with him and interim orders to the effect that the mother would be required to live in the Canberra area.
The matter came before his Honour for an interim hearing on 2 February 2012. Both parties were legally represented at that hearing, and his Honour ordered that “as soon as practicable the mother relocate the residence of the child to the Canberra area”; that the child live with the mother and spend some overnight time with the father (in the presence of his mother and sister); and that the matter be adjourned to 2 May 2012. It is to be noted that the mother did not file an appeal against those orders.
On 24 April 2012, the mother’s lawyers filed a notice of ceasing to act. The mother did not appear at the hearing on 2 May 2012 and his Honour issued an order for the police to recover the child and deliver her to the father.
According to his Honour’s reasons for judgment of 10 July 2012 (at [10]), the recovery order was executed on 13 May 2012 and for the next two weeks the child lived with the father.
On 29 May 2012 the matter again came before his Honour with both parties then being represented. His Honour ordered that until further order, the child live with the mother and spend time with the father in accordance with his orders of 2 February 2012.
The matter then came on for final hearing before his Honour on 14 and 15 June 2012. Prior to that hearing, the mother had filed an application in a case on

22 May 2012, seeking that the child live with her in Queensland.
In preparation for the final hearing, a family consultant, Ms M, had prepared a family report dated 27 May 2012. Because certain grounds of this appeal are directed to his Honour’s failure to accept the recommendations of the family consultant, we will set out her conclusions and recommendations at this point:
7.Conclusion
7.1[The child] appears more securely attached to her mother than her father. This is to be expected given the amount and frequency of time she has spent in each parent’s care. It is not clear why Skype contact has not been utilised with [the child] to facilitate communication with her father to this point as telephone contact is reportedly problematic. She appears healthy and clean and achieving developmental milestones.
7.2The history of violence in the parent’s [sic] relationship is a current barrier to communication, and will potentially continue to be so. It is important that this be addressed by both parents to ensure satisfactory communication for and about the child is arranged.
7.3Difficulties in being able to contact the mother consistently have led the father to seek orders for the child to live with him full time. The mother reports that she was misinformed regarding the requirements to inform the father of her primary residence given the violence orders she has against him.
8.Recommendations
1.That the child…live with her mother in the home they have established in the Brisbane area.
2.That the father be permitted to contact the child through Skype/internet and telephone as appropriate.
3.That arrangements for visitation between the parents as previously agreed be continued and adapted as necessary as the child ages.
4.That the mother advise the father of any changes to her address within 24 hours.
5.That the father undertake counselling in regard to his use of violence and any further education recommended by that person before unsupervised contact is permitted with the child.
6.That the mother undertake some counselling support given the stress of the current situation, and in regard to her relationship choices as they may impact on the child’s environment.
(emphasis in original)
At the final hearing before his Honour, and as recorded in the opening paragraph of his reasons for judgment, the father sought that the child live with him (in the Canberra area) while the mother sought that the child live with her and that they do so in Brisbane. It was the father’s position that even if the child was to live with the mother, they should not be permitted to leave the Canberra area.

The Federal Magistrate’s decision and the terms of the orders made

In his reasons for judgment delivered on 10 July 2012, his Honour determined that the child should continue to live with the mother, but he also determined that the mother should not be permitted to relocate to Brisbane with the child. His Honour also determined that he would make an order for equal shared parental responsibility.
His Honour’s orders, subsequently made on 6 August 2012, then provided as follows:
1.THAT all previous orders in relation to the child…be discharged.
2.THAT the parties have equal shared parental responsibility for the child.
3.THAT the child live with the mother.
4.THAT the father spend time with the child each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday.
5.THAT the handovers are to be at a place to be agreed between the parties.
It is to be noted that the orders did not include an order dismissing the application of the mother to be permitted to relocate with the child to Brisbane. Nor did they contain any indication of the geographical area in which the child was to live, although it can perhaps be assumed that it would have to be in an area in which it would be feasible for the child to spend alternate weekend time with the father.
No issue was raised before us concerning this apparent omission in

his Honour’s orders, but as will later be seen, it has no consequence given the decision which we will reach.

The scope of the appeal

It is stated in the mother’s notice of appeal that she “is appealing all of the orders other than the order for equal shared parental responsibility.”
It is perhaps somewhat curious that the mother is apparently appealing the order (Order 3) which provides for the child to live with her, although in the orders sought in her notice of appeal she does seek that the residence order be re-made in her favour, and that she be permitted to relocate the child’s residence to Brisbane.
Significantly, her grounds of appeal, which are as follows, can all be read as being directed to the decision that the child’s residence should not be moved to Brisbane:
1.That His Honour erred in law in failing to give adequate reasons for his determination that it was in the best interests of the child to remain in the Australian Capital Territory.
2.That His Honour erred in the application of the law in failing to have any or sufficient regard to the following matters:
2.1The detrimental impact on the Mother’s accommodation of remaining in the Canberra area and the impact that this would have on the child in the long term.
2.2The detrimental impact on the Mother’s employment prospects of remaining in the Canberra area and the impact that this would have on the child in the long term.
2.3The detrimental impact on the Mother’s financial circumstances of remaining in the Canberra area and the impact that this would have on the child in the long term.
2.4The evidence that the Father did not commence proceedings for some eight months after the Mother moved to Brisbane and that the Mother had been living in Brisbane for over 12 months prior to being ordered to return to the Australian Capital Territory with the child.
2.5The evidence that the Mother has limited support available to her in the Canberra area including but not limited to the evidence of the maternal grandmother in support of the Father in circumstances where she had not met the Father.
2.6The evidence that the Father is presently not paying the Mother child support and is in significant arrears.
2.7The evidence that distance between the parties might make it less likely that the child would be further exposed to family violence between the parties.
3.That His Honour erred in finding that the Family Consultant failed to provide an adequate reasoning process.
4.That His Honour erred in dismissing the recommendations of the Family Report.
5.Further and in the alternative, that His Honour erred in ordering the Mother and child to remain living in the Australian Capital Territory.
Ground 1 was not pursued, and thus will not be considered.
Ground 5 merely asserts error in a non-specific way, and thus can only be considered in the context of the complaints in Grounds 2, 3 and 4.
In summary, Grounds 3 and 4 are directed to his Honour’s failure to accept the recommendations of the family consultant, while Ground 2 asserts that his Honour failed to have regard, or alternatively accorded too little weight to:
·the detrimental impact on the mother’s accommodation, employment prospects and financial circumstances of staying in the Canberra area and the long term impact on the child of these matters;
·the length of time that the mother and the child had been living in Brisbane before the father commenced proceedings seeking their return to the Canberra area;
·the limited support available to the mother in the Canberra area;
·the evidence that the father is not paying child support and is in significant arrears; and
·the evidence that distance between the parties might make it less likely that the child would further be exposed to family violence between the parties.
We turn then to examine his Honour’s reasons for judgment in order to ascertain if there is substance in these complaints.

The Federal Magistrate’s reasons for judgment

After setting out the factual background to the case, his Honour explained (at [11]) that s 60CA of the Family Law Act 1975 (Cth) (“the Act”) required him to treat the child’s best interests as the paramount consideration and that s 60CC sets out the matters to be taken into account in assessing the child’s best interests.
He then referred to the primary considerations (contained in s 60CC(2)) being, in summary, the benefit of the child having a meaningful relationship with each parent, and the need to protect the child from harm, including exposure to family violence.
Importantly for his ultimate decision, his Honour emphasised the significance of the child’s relationship with the father, saying:
13.I am satisfied that it would be in [the child’s] best interests to have a meaningful relationship with her father. I am satisfied that, subject to other aspects of the case that bear on her best interests, it would be desirable for her to have as close a relationship as possible with her father.
His Honour then acknowledged that issues of family violence played a significant part in the case and he said he would return to those matters.
Turning to the matters contained in s 60CC(3), his Honour made findings regarding the matters which he regarded as relevant. Again his findings, which follow, concerning the child’s relationship with her father and the effect of any separation between them, are significant for present purposes:
17.Paragraph (b) requires me to consider the nature of the relationship with the child with each of her parents and other persons including grandparents and other relatives. As I have decided that [the child] should live with the mother it is her relationship with the father that is of most significance.
18.In this matter a family report was prepared by Ms [M], a Regulation 7 Family Consultant. Ms [M] observed the child with the father and with the mother. In her observations she formed the view that the child’s primary attachment was with the mother. Mr Blank, who represented the father attacked those findings but ultimately I accept them. Apart from anything else the history of the matter would indicate that the child’s primary attachment should be to the mother. By this I mean that throughout the child’s life the mother has been her main carer.
19.I am uncertain as to the closeness of the relationship between the child and the father. This is one of the reasons why I have decided that there should not be a relocation. I will discuss this later in the judgment.
…
22.Paragraph (c) requires me to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. The father would have me find that the mother lacks that willingness. He would point to her actions after she moved to Brisbane, and in particular her actions after my orders on 2 February 2012. However in all the circumstances I am not satisfied that any lack of enthusiasm on the part of the mother to build a relationship between the child and the father is of sufficient to impact on the decisions I am required to make in this case.
His Honour also made the following findings concerning other relatives of the child who are in the Canberra area:
20.[The child’s] maternal grandmother lives in Canberra. The mother in an affidavit filed on 16 January 2012 stated that [the child] “has quite a close and loving relationship with my mother.” Her paternal grandparents live at [Town BB, NSW] and the evidence is that she has a close relationship with these grandparents also.
21.I am uncertain how much contact [the child] has had with the mother’s brother who lives in Canberra so I am unable to comment on their relationship. The father has a sister in Canberra. I have no reason to believe there are any problems with the relationship between [the child] and the father’s sister.
His Honour expressly left until later in his judgment a number of the s 60CC(3) matters, notably the difficulties of maintaining communication (s 60CC(3)(e)), each parent’s capacity to provide for the needs of the child (s 60CC(3)(f)), and their attitudes to the responsibilities of parenthood (s 60CC(3)(i)).

In relation to the child support arrangements, his Honour said:
34.Section 60CC(4) requires me to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. It sets out a number of criteria to be specifically addressed one of which is whether a parent has fulfilled or failed to fulfil, the parents’ obligations to maintain the child. The father has some $5,600 child support arrears and this would appear to reflect no credit on him at all. However I need not rely on this when reaching my decision that there should be no change in the residential arrangements in relation to the child.
In relation to issues of violence (s 60CC(3)(j) to (k)), his Honour provided the details of the assaults on the mother in June and September 2008, of which the father had been convicted, and to which we have earlier referred, and then continued:
40.The Family Law Act in a number of sections indicates that matters of domestic violence should be treated seriously. For my part I need no reminding by the legislature of the seriousness of domestic violence. I need not dilate on this. Suffice to say that I would have grave reservations in making an order that a child live with a person who has been guilty of such domestic violence. Essentially what the father is asking me to do is to reverse a longstanding residence arrangement, to remove the child from her primary attachment figure and to place her in the care of a person who has twice been convicted of domestic violence offenses [sic]. It is obvious that this is a big ask.
Immediately thereafter his Honour outlined the reasons why the father claimed that the child should live with the mother. For present purposes, it is only necessary to set out the following paragraph:
43.Secondly he says that the mother has no commitment whatsoever to his having a meaningful relationship with the child. He says that she could not be trusted to comply with court orders that would allow him to spend time with the child. There is some substance in this. The mother’s reaction to my order directing her to return to the Canberra area was to sign a twelve month lease on another property in Brisbane, to dismiss her lawyers and to ignore my orders. It is unclear what would have been the outcome had the Police not been able to ascertain her whereabouts.
His Honour then reached his conclusion in relation to the residence issue saying:
45.I need not dilate further on the residence issue. In my view it is a clear-cut case. I have concerns as to the actions of the mother after my orders or [sic] 2 February and I have concerns about some other aspects of her care of the child. However these do not come close to being of sufficient gravity to justify the radical orders the father seeks.
Then his Honour turned to the relocation issue, which is the essential issue in the appeal. At the outset he recognised (in [46]) that his decision on this issue would be inconsistent with the recommendation of the family consultant. However, his Honour observed that she had not analysed “the pros and cons of relocation and did not indicate why, ultimately, she came to the conclusion that there should be a relocation.” His Honour then emphasised that even taking into account her oral evidence, the family consultant could not be said to have balanced the matters which supported a move to Brisbane against those that did not. Importantly, having regard to Grounds 3 and 4, his Honour cannot be said to have been wrong in his analysis of the consultant’s evidence, as contained both in her written report and oral evidence.
His Honour can then be read as identifying and weighing or balancing the matters which would, or would not, support the move to Brisbane.
The matters which he considered favoured the relocation were was follows:
48.As I have indicated the fact that the mother and the child had become settled in Brisbane is a significant matter indicating that I should permit a relocation. In addition she has accommodation in Brisbane. She has been given a lease of a house for twelve months and this is at a concessional rental. Whilst the father’s counsel submitted that I should proceed on a basis that she could only stay in that residence for twelve months I do not make that assumption. The evidence is that, provided she pays the rent and is a satisfactory tenant, the lease would be renewed. I am conscious of the fact that she has been evicted from other premises for not paying the rent but I am not prepared to infer that this problem will continue. In contrast the mother’s position in relation to accommodation in the Canberra area is uncertain. At present she is living in accommodation which, in the long term, is not satisfactory. She will have to re-house herself. She will get little if any assistance from the father. He has been assessed to pay child support of $70 a week but, as I have indicated, his record of paying child support is not impressive.
49.In relocation matters I am always conscious of the psychological effect that refusing to allow a parent to relocate to a place of choice will have on that parent. I am certain that the mother will be very disappointed and unhappy with my decision. I accept that this is likely to have an effect on her parenting capacity and that her unhappiness will be picked up by the child. This is an important matter. In addition it is likely that the mother will resent the fact that the father has prevented her from living in the place of her choice. With the best will in the world it would be impossible for her to feel otherwise. This is not in the best interests of the child. The steps the mother was prepared to take to secure orders that would permit her to live in Brisbane is an indication of the strength of her wish to live there. By this I refer to the matters set out in paragraph 57.
50.A significant factor favouring my making orders which would permit a relocation is the fact that the father took no steps for some considerable time after the mother’s move to Brisbane and did not file any application until August 2011.
51.I take into account the violent behaviour of the father but I do not believe that the mother is at any significant risk were she to continue to live in the Canberra area provided there was no significant interaction between the parties.
52.Whilst the child’s best interests are the paramount consideration they are not the only consideration. The mother’s right to freedom of movement is a significant factor.
His Honour then turned to the matters which militated against the relocation saying:
54.The most significant fact militating against allowing a relocation is the impact that it would have on the relationship between [the child] and the father. [The child] is only three years of age and Ms [M] agreed that, at this age, to promote an optimal relationship between the child and a “non-residence” parent, it is preferable to have contact occurring with some frequency. With a child [the child’s] age lengthy periods of block contact are not appropriate and any contact should be for comparatively short periods of time. Given that circumstances have restricted the time the father has spent with the child I can infer that their relationship is not as close as might be found if he had had frequent contact. It is difficult to see how an optimal relationship could develop if the mother were to live in Brisbane. I would imagine that the relationship would be more in the nature of an avuncular relationship than a father-daughter relationship.
His Honour then considered the practical difficulties of the father being able to spend time with the child if she lived in Brisbane, and in particular the mother’s final proposal for such “contact”:
57.At the end of the case the mother changed her position. This was done in re-examination, presumably after her counsel had obtained fresh instructions. The practicability of her new proposal therefore was not explored in cross-examination. This proposal was to the effect that she would come to Canberra once a month. I do not believe that this would work in practice. The same problems that I have mentioned in relation to the father’s visiting Brisbane would occur. She would once have had accommodation at her mother’s place but she and her mother have fallen out and this is no longer practicable. If she were to travel by air there would be significant expense involved. The child, of course, cannot travel by air unaccompanied. If she were to be travel by road there would also be significant expense. Furthermore it would be extremely punishing on the child to subject her to the amount of travelling involved were it to be by road. I imagine she would come to regard her visits to her father as a chore.
58.Even if this contact were practicable it is far from ideal. Contact for a few hours once a month is not conducive to a child [the child’s] age maintaining an optimal relationship with the father (or, if the relationship needs building, to build that relationship).
59.There is more to the parties living in reasonable proximity than just the opportunity that it gives for the child to spend time with the non-residence parent. It enables the non-residence parent in due course to participate in school activities and sporting and extracurricular activities.
60.The alternative of Skype was suggested but I am not satisfied that Skype is any substitute for any face to face contact.
His Honour then observed (in [61]) that if the child was to live in the Canberra area, she would have a greater opportunity to spend time with her maternal grandmother and paternal grandparents, and he thus concluded:
62.On balance I am satisfied the advantages of my making orders which would permit the mother to relocate to Brisbane are outweighed by the advantages of making orders that would require her to remain in the Canberra area. I will make such orders.
Finally, his Honour considered the issue of parental responsibility. He correctly observed that the presumption of equal shared parental responsibility could not apply because of the family violence in the case. Nevertheless, his Honour was prepared to make an order for equal shared parental responsibility (which the father had sought but the mother had opposed) for reasons which he gave. As there is no appeal against that order, we need say no more about that order or the reasons for it.

Discussion and conclusion

As we have earlier indicated, we have no difficulty with his Honour’s treatment of the family consultant’s evidence and thus we find no merit in Grounds 3 and 4. However, we are extremely concerned about certain of the matters raised in relation to Ground 2.
It is true that in [20] and [21] (see [32] of these reasons) and in [48] to [55] (see [40] of these reasons) of his reasons his Honour can be seen to have had at least some regard to each of the factual matters raised by Ground 2 (and which are summarised in [25] of these reasons). Yet his Honour ultimately determined that all such matters were outweighed by the need for the child to develop and maintain an optimal relationship with the father and the difficulty of doing this if the child and the mother lived in Brisbane and the father in the Canberra area.
We of course recognise the limitations which authorities such as

Gronow v Gronow
(1979) 144 CLR 513 place on appellate interference with discretionary judgments on the basis only of matters of weight.
However, given the mother had been in Brisbane for a period of some months before the father commenced proceedings; the extreme violence which had characterised their relationship and which would always be likely to cast a shadow over any future dealings between them; the relative certainty of her housing arrangements in Brisbane compared to the uncertainty of such arrangements in the Canberra area; and the father’s lack of commitment to his child support obligations, we can only conclude that his Honour’s decision was, with respect, and in the words of Stephen J in Gronow (at 519), “plainly wrong”, and requires our intervention. Thus the appeal must be allowed.

Future course of this matter

In her notice of appeal the mother sought that in the event that we found merit in the appeal, we should re-determine the matter and permit her to relocate the child’s residence to Brisbane, Queensland. This was also the position initially adopted by her counsel at the hearing of the appeal.
However, as we indicated during the hearing, it would be extremely rare for this Court to re-determine such a significant matter, particularly as the parties would need to be given the opportunity to produce updating evidence, which could well be controversial. In these circumstances, there is unfortunately no option other than for us to remit the matter to the Federal Circuit Court (as the Federal Magistrates Court has now been renamed) for a new trial.
Given the applications which were before the Federal Magistrate and the orders which were the subject of the appeal, all matters (other than the issue of equal shared parental responsibility) would need to be the subject of the new trial.
We appreciate, however, that there may well be a need for interim orders pending the new trial. The most convenient course would appear to be for us to remake as interim orders, his Honour’s orders which provide for the child to live with the mother and to spend time with the father. However, such interim orders as made by us would be capable of variation by application to the Federal Circuit Court.

Applications in relation to further evidence

At the hearing of the appeal, we had before us applications from each party to be permitted to file applications to adduce further evidence outside the prescribed time limit.
As emerged from our discussions with both counsel, the evidence sought to be adduced would be controversial. It would also be essentially concerned with events which have occurred since the trial and would be more relevant to a re-determination of the parenting proceedings. Accordingly, and having regard to the principles enunciated in CDJ v VAJ (1998) 197 CLR 172, such evidence would not be received by us in relation to the appeal itself.
While we would not have been unduly concerned about either party’s failure to file his or her application to adduce further evidence within the prescribed time, given that we would not receive the further evidence from either party for the reasons just explained, we will dismiss the applications to extend time to file the applications to adduce further evidence. That course will not, of course, prevent either party seeking to adduce the evidence in question in the new trial which is to be ordered.

Costs of the appeal

At the conclusion of the hearing of the appeal, we received submissions on behalf of both parties in relation to the costs of the appeal in the event that it was either successful or unsuccessful.
Having regard to those submissions, and in light of the fact that the appeal has succeeded, we propose to order that there be no order as to costs. We also propose to order that each party should receive the appropriate certificate under the Federal Proceedings (Costs) Act 1981 (Cth), both in relation to the costs of the appeal and of the new trial.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Coleman and Strickland JJ) delivered on 7 May 2013.

Associate:

Date: 7 May 2013